DORMAN BLOSS and others v. STATE OF KANSAS.

July Term, 1873.

Recognizance: Taken by Sheriff. After a party has been committed for trial on a charge of felony, a writ of habeas corpus prosecuted, the amount of bail reduced, and the accused returned to the custody of the sheriff, that officer has power to take and approve a recognizance.

Error from Clay district court.

Action against Dorman Bloss, as principal, and Hiram Bloss, as surety, on a forfeited recognizance. The case is stated in the opinion.

*463

*McClure & Humphrey, for plaintiffs in error.

The suit is upon what is claimed to be a forfeited recognizance. Dorman Bloss was committed in default of bail to the jail of Riley county by the examining magistrate. Bail fixed by the justice at $800. A writ of habeas corpus was subsequently sued out before the probate judge of Riley county, (as appears from the averments in the petition,) who reduced the bail to $400, which bail the sheriff took. The sheriff had no power to take $400 bail. The probate judge should have let the prisoner to bail in the lesser sum, and the recognizance is void. Cases in which the sheriff may take bail, section 143, Crim. Code; those wherein the judge should take bail, section 62, Crim. Code, and section 672, Civil Code. See, also, Solomon v. People, 15 Ill. 291.

C. M. Anthony, Co. Atty., for the State.

BREWER, J. Dorman Bloss was arrested on a charge of grand larceny, and committed for trial. Bail was fixed by the examining magistrate at $800. He sued out a writ of habeas corpus before the probate judge, who reduced the bail to $400. Afterwards the sheriff took and approved a recognizance in the sum of $400, which was forfeited by the non-appearance of the accused. An action was brought on this forfeited recognizance, judgment rendered in favor of the state, and this proceeding in error instituted to reverse such judgment.

The only point made by counsel is that the bond was void because taken by the sheriff. It is insisted that the judge who issued the

writ of habeas corpus, and reduced the bail, was the only offi*464 cer authorized to take the *recognizance. This is a mistake.

While the proceedings in habeas corpus were pending before the judge, unquestionably he had power to take the recognizance. Crim. Code, § 62; Civil Code, §§ 672,673. But after he had rendered his decision and reduced the amount of bail, and returned the accused to the custody of the sheriff, that officer then had the power. Crim. Code, § 143. He held the accused under a mittimus. That mittimus fixed

the amount of bail. The proceedings before the judge had reduced the amount, but they had not set aside the mittimus. Probably the probate judge could have himself issued a valid mittimus indorsing the bail thereon at the reduced amount, but still the sheriff would have had the power to take the recognizance. Even if such proceedings were without warrant of law, and void, it is doubtful whether either the accused or his sureties could take any advantage of the fact. The sheriff accepted a recognizance for a less amount than that fixed by the committing magistrate. Hodges v. State, 20 Tex. 493. But so far as the record shows, the action of the judge was legal and valid. Having availed themselves of such action in their favor, they are hardly in a position to contest its validity. The judgment of the district court is affirmed.

(All the justices concurring.)

JOSEPH MOCRUM and others v. AMANDA CORBY, Ex'x, etc.1

July Term, 1873.

1. Note and Mortgage: Assignee: Collateral Security: Distribution on Foreclosure. When the payee of a negotiable promissory note secured by mortgage assigns the note and mortgage as collateral security to secure the payment of a debt due from said payee to said assignee, and when the assignee afterwards sues on said note and mortgage, making the maker thereof the payee, and all other persons interested therein, or in the mortgaged premises, parties to the suit, held, that the said as*465 signee can recover in said suit only the amount of the debt *due from the payee to himself, and that any surplus due on the note after paying said debt to said assignee, must be paid to the person who is in equity entitled to the same. [Ayres v. Probasco, 14 Kan. 191.]2

2. Bills and Notes: Transfer: Equitable Assignment. When a negotiable promissory note payable to "order," and a mortgage given to secure the same, are transferred, whether before or after maturity, by delivery merely, and not by indorsement, held, that the assignee obtains merely an equitable interest in the note and mortgage, not the legal title thereto; and when the assignee sues on said note and mortgage the assignee must be prepared to meet all equitable defenses or claims which

1This case in court, 15 Kan. 112.

Allegation of ownership of note in petition, effect. Washington v. Hobart, 17 Kan. 275. The payee of a negotiable promissory note, before its maturity, indorsed and delivered it to a bank, to be used as collateral security for the pay. ment of a buggy purchased at the time from the plaintiff. Before maturity, but after the indorsement and delivery to the bank, though without knowledge thereof, the maker paid said note to the payee and took a receipt therefor. Held that such payment did not discharge the note or defeat a right of action thereon. Best v. Crall, 23 Kan. 482. Restricted indorsement of a note, effect. Armour Banking Co. v. Riley Co. Bank, 30 Kan. 163; S. C. 1 Pac. Rep. 506. Right to sue. State v. Lee, 32 Kan. 363; S. C. 4 Pac. Rep. 653.

may be set up against said note and mortgage. [Hadden v. Rodkey, 17 Kan. 481.] [3. Choses in Action: Assignability. At common law no chose in action was negotiable or even assignable. In equity every chose in action, except a tort, was assignable; but it was assignable subject to all equities that might be set up against it. Under the Kansas statutes every chose in action is assignable, except a tort, the same as it was in equity, and is subject after assignment to all equities that may be set up against it, unless it be a negotiable instrument. Per VALENTINE, J.]

Error from Doniphan district court.

The notes sued on, except as to amount, and time of maturity, are alike. The first note is as follows:

"$590.00

NOVEMBER 10, 1865.

On or before the tenth of November, 1868, I promise to pay to H. W. Boone, or order, the sum of five hundred and ninety dollars, negotiable, and payable without defalcation or discount, with interest at the rate of six per cent. per annum from maturity, for value received, subject to a discount of six per cent. per annum if paid before due, for the unexpired time. W. J. VANCUREN."

On the twenty-fourth of November, 1868, said Vancuren and his wife executed to said Boone a mortgage on certain lands lying in Doniphan county, Kansas, to secure the payment of said three notes. The next day, Boone transferred said notes and mortgage to John Corby. Amanda Corby is executrix of said John Corby, deceased. In December, 1871, said Amanda, executrix, etc., brought her suit on said notes, and to foreclose said mortgage. In the answer of W. J. Vancuren and wife they alleged that said W. J. V. confessed a judgment on said notes in favor of said H. W. Boone, in the district court of Doniphan county at the April term, 1869, for $1,630.43, and costs; *466 that they had no *notice that Boone had transferred the notes to Corby, and that at the time said judgment was so confessed said notes were not "indorsed" to said Corby; that afterwards said judgment was assigned by said Boone to defendant Joseph McCrum, to whom said W. J. V. had, in 1869 and 1870, paid $1,001.55 to apply on said judgment, and they claimed that said judgment was a bar to the action brought by Corby's executrix. McCrum in his answer claimed to own the judgment confessed on the notes by Vancuren, and to be entitled to the mortgage given to secure said notes. Boone answered, setting up a general denial. Shortly before said suit was commenced by said executrix, McCrum, as assignee of said judgment, sued out a writ of execution thereon, upon which the sheriff of Doniphan county levied on said mortgaged premises, whereupon Vancuren. and wife brought suit against McCrum and Campbell as sheriff, to enjoin proceedings upon said execution until the rights of the parties interested could be determined. These two actions were consolidated,

and were tried together at the December term, 1872, of the district court. Judgment was given in favor of Corby's executrix and against W. J. Vancuren for $1,995.23, and costs, and a decree of foreclosure and sale of the mortgaged premises entered.

Albert Perry, for plaintiff in error.

Nathan Price, for defendant in error.

VALENTINE, J. It appears from the record in this case that two actions were commenced in the court below-one entitled as follows: "Amanda Corby, executrix of the last will and testament of John

Corby deceased, plaintiff, v. W. J. Vancuren, Henrietta Van*467 curen, H. W. Boone, and Joseph *McCrum, defendants;" the other entitled as follows: "Willis J. Vancuren and Henrietta Vancuren, plaintiffs, v. Joseph McCrum, and Bayless Campbell, sheriff of Doniphan county, defendants." These two actions were consolidated by order of the court. W. B. Wood was appointed a referee to hear and determine evidence, and to report the amount of money paid by W. J. Vancuren to Joseph McCrum. This was the only question submitted to said referee. The referee performed his duties, and reported that the amount so paid was $273.47. Other issues were tried by a jury, and the jury found thereon as follows: "(1) Question. Did the defendant H. W. Boone transfer the notes now sued on in this action to John Corby, plaintiff's testator, in his lifetime, as collateral security for debts due from said Boone to said Corby? Answer. Yes. (2) Q. Are the notes still held by said plaintiff under the contract by which said John Corby received them from defendant Boone as collateral security for indebtedness from said Boone to said Corby? A. Yes. (3.) Q. If the plaintiff is entitled to recover, what shall be the amount of his recovery? A. $1,995.23. (4.) Q. Were the notes sued upon in this action deposited with the said John Corby for safe keeping, by the said Boone? A. No."

These are all findings in the case, or rather in the two cases. There is no general finding by either the court, or the referee, or the jury. And these special findings do not cover all nor any great proportion of the issues in the two cases. Can any one tell from said findings, with the aid of all the admissions in the pleadings, whether said notes were indorsed by Boone, or merely transferred by delivery to Corby? Were they transferred before due, or afterwards? Did Vancuren have any notice that they were transferred to Corby as collateral security when Vancuren confessed judgment on them to Boone? By what authority was the said judgment rendered against Henrietta Vancuren? Moore v. Wade, 8 Kan. *380. Was the real estate which was mortgaged to secure the payment of these notes the homestead

of Vancuren and family? Morris v. Ward, 5 Kan. *239. *468 Had Vancuren any *notice that Corby held said notes as col

lateral security when he paid said $273.47 to McCrum? Had McCrum any notice that Corby held said notes as collateral security

when he, McCrum, purchased said judgment from Boone, or when he received said money on the judgment from Vancuren? Did Boone owe Corby's estate at the time of the trial in this case more or less than the amount of the said notes? Were the debts that these notes were intended to collaterally secure usurious, or not? Where were these debts contracted? If in Missouri, what are the laws of Missouri concerning usury? These questions cannot all be material, but any one of them may be material if the fact should be found in a particular way. This case, or rather the two cases, were very carelessly tried in every respect in the court below, if the record brought to this court is correct. As an instance of the careless manner in which the parties submitted interrogatories to the jury to obtain special findings of fact thereon, we would refer to the interrogatory upon which the third finding of the jury is based, to-wit: "If the plaintiff is entitled to recover what shall be the amount of his recovery?" There were three plaintiffs in the two cases, not merely one. In the first case mentioned the plaintiff was a woman, and "his" would not be applicable. In the other case one of the plaintiffs was a man, and the other a woman. It will be obvious to any one who will examine the record now before us, that we cannot at the present time determine all the rights of all the parties in this court. We shall therefore not attempt to do so, but shall decide one or two questions, and send the case back to the court below for a new trial.

The judgment of the court below was in favor of Amanda Corby, executrix of John Corby's estate, and against Willis J. Vancuren for the full amount of the said notes with interest, and against all the parties who are now plaintiffs in error, to-wit: Willis J. Vancuren, Henrietta Vancuren, H. W. Boone, and Joseph McCrum, for the sale

of the mortgaged premises. The plaintiffs in error raised the *469 question in the court below, and now *raise it here, that

Corby's estate could at most recover only for the amount of the indebtedness from Boone to said estate. The court below seemed, however, to be of a different opinion. The plaintiffs in error asked the court to instruct the jury to make special findings upon the following questions of fact, to-wit: "Were the notes sued upon in this action deposited with John Corby by defendant Boone as a collateral security to said Corby for an indebtedness to him by Boone? If yea, how much is now due on such indebtedness?" The court refused to so instruct the jury. Laws 1870, p. 173, § 7. "And the court instructed the jury that they must find for the plaintiff upon the third question of fact the full amount of the notes sued upon with interest." We think the court erred. This ruling of the court would, perhaps, have been correct in an action brought by said executrix against Vancuren and wife alone. In such an action the executrix could have collected the full amount of the notes, and then let Boone and his assignees look to her for any surplus remaining after paying her claim against Boone. But in this action Boone and his assignee, McCrum, v.11k-23